Saturday, November 1, 2014

In the small French town of Vendargues, no one over the age of 12 is allowed to wear clown makeup or costumes today. In contrast, no reported anti-clown ordinances have cropped up this year in the U.S. But that doesn't mean you can wear your Halloween costume wherever you want.

Below, a few legal fine points to consider:Can I wear my costume on the street? Probably. "People can wear what they want on the street so long as they do not violate public indecency laws," says Erwin Chemerinsky, dean of the University of California at Irvine School of Law. Some states and municipalities have passed anti-mask laws; New York State's 19th century statute was used to bring charges against Occupy Wall Street activists. But many states have exceptions for Halloween and for kids.

Can I wear my costume to the corner store? Not if management doesn't want you to. "A private store can regulate its customers so long as it does not discriminate on a prohibited basis, such as race, religion, sex, and in many states like California, sexual orientation," Chemerinsky says. Because the First Amendment generally binds the government, not private companies, it's up to the owner whether goblins, ghouls, or zombies are welcome.

Can I wear my costume to school? That's probably up to the principal. "The First Amendment does not apply in private schools, so no student [or teacher] has a ‘right' to wear a costume in those places," says Mary-Rose Papandrea, a professor at Boston College Law School.

Public school students do have some First Amendment rights, but their principals have a lot of leeway. Courts have held, notes Georgetown Law professor Rebecca Tushnet, that "schools can make rules to preserve the learning environment; although a nondisruptive symbol like a black armband is protected, it's hard to imagine a court extending that to a full costume."

Can I wear my costume to work? Probably not. "Historically, especially in the private-sector workplace, there's almost no protection for employees," says Paul Secunda, who directs the labor and employment law program at Marquette University. "They can be fired for good reason, bad reason, no reason at all," including for what they wear to work.

Even in the public sector, where the First Amendment does apply, courts have generally sided with management when it comes to how workers dress at work. "Earrings, tattoos, long hair, clothes -- these cases made their way through the Supreme Court in the early to mid-'70s with all the hippies and everything," says Secunda. "And pretty early on, the court said there's really no constitutional right here to self-expression."

There is a potential exception: A company that punished a group of employees who dressed up as an act of protest against their working conditions, or allowed workers to wear anti-union costumes but not pro-union ones, could run afoul of federal labor law. Costumed protests aren't unheard of: Last Halloween, an activist employee of the pharmaceutical company McKesson (MCK) alleged he was interrogated and suspended because he showed up to the company party dressed up as the chief executive officer.

In early October, with his poll numbers stubbornly lagging his Democratic opponent's, Ed Gillespie did something almost no other Republican candidate has done this campaign season. Mr. Gillespie -- a former lobbyist, former chairman of the Republican National Committee and now Senate candidate in Virginia -- unveiled a plan to replace the Affordable Care Act.

The proposal, which would use tax credits and a federally funded "high-risk pool" to cover the uninsured, opened him to criticism. It most likely would cover fewer people than President Obama's health care law, while having fewer statutory protections and still requiring billions from the federal government.

Almost no one questioned its seriousness, but almost no one took up the cause.

Republican attacks on the health care law dominated the early months of the campaign, but now have largely receded from view. The focus instead has been more on tethering Democratic candidates to Mr. Obama with a broad-brush condemnation of his policies.

And even though some Republican candidates still vow to repeal the law, almost none have offered an alternative. Mr. Gillespie and Mike McFadden, the Republican challenger to Senator Al Franken in Minnesota, stand as exceptions, to little effect. Like Mr. Gillespie in his race against Senator Mark Warner, Mr. McFadden holds little chance of defeating the incumbent on Tuesday.

"The A.C.A. is bad policy, but it was passed because of legitimate concerns about the affordability and accessibility of health care coverage," Mr. Gillespie said in an interview. "And we need to show we share those concerns."

Without stronger voices and a more robust policy debate, Tuesday's results are likely to leave no one to claim a mandate for a new direction if Republicans win control of the Senate.

"I'm here raising my hand saying we've got a health care problem in this country. I want straight talk," Mr. McFadden said in an interview Thursday. "The idea that you repeal, everything goes away and we go back to the old system? The old system is bad. We have to address it."

Even though Senator Mitch McConnell, Republican of Kentucky, who could become the majority leader if he wins re-election and his party nets six seats, has stuck by his promise to repeal the law "root and branch," he has conceded that is quite unlikely to happen. Still, the outcome of the election will mean, particularly if Republicans do as well as forecast, that the debate over health care is not over.

"The leaders of the majority party in the House and Senate are likely to reflect the views of their party's adherents," two Harvard University scholars concluded in The New England Journal of Medicine. Their view is supported by public polling that shows a highly partisan assessment of the law. A Pew Research Center poll in September found that 83 percent of Republican likely voters say they want the law repealed or scaled back, an overwhelming sentiment that would be hard to ignore if Congress is in all-Republican hands next year.

But Mr. Obama would veto any attempt to repeal the law, so Republicans are left with lesser options.

Under Mr. Gillespie's plan, tax credits would be used by those without access to employer-provided health care to buy insurance on the individual or small-group market. People with an existing medical condition could not be dropped or see premiums rise as long as they maintained constant coverage. Those with existing health problems who could not find health plans would go to "high-risk pools" run by the states but financed with $7.5 billion in federal funds, an amount that would rise 3 percent a year.

According to the Center for Health Economy, whose board includes conservative and liberal health care economists, the plan would leave about six million fewer people insured in a decade, primarily because it would roll back Medicaid expansion. But, the center said, it would also lower the cost of less comprehensive health insurance plans, expand access to health care providers and cost $1 trillion less than the Affordable Care Act.

"In order to repeal Obamacare, we must present an alternative that is both practically effective and politically viable," Mr. Gillespie said when he unveiled his plan. "Repeal efforts in the absence of an alternative plan have repeatedly fallen short."

Under Mr. McFadden's plan, states that have established insurance exchanges under the health care law could keep them, and some federal subsidies could be available in the form of block grants to state governments. He, too, would establish state-run high-risk pools for people with existing conditions, at a cost he estimated to be $15 billion a year, much of which would come from Washington.

At this point, the argument over whether to repeal and replace the health care law or change it is "largely semantic," said Douglas Holtz-Eakin, a Republican member of the Center for Health Economy board who assessed Mr. Gillespie's plan. There are now at least five Republican replacement plans, and almost all of them share elements with the Affordable Care Act: tax credits to buy health insurance, protections for people with existing medical problems, a cap on the tax deductibility of employer-provided health insurance, and some definition of the kinds of health plans eligible for federal subsidies.

Senior Senate Republicans are already examining how they could use a parliamentary budget rule called reconciliation to gut the health care law, by curtailing or eliminating tax credits used to purchase insurance on the law's health exchanges and repealing its tax increases. Under reconciliation, such a move could not be filibustered by Democrats, but it could be vetoed by the president.

And reconciliation could not be used to alter parts of the law, such as regulations and mandates, that do not affect federal spending or revenues.

"It would take 60 votes in the Senate," Mr. McConnell told Fox News. "No one thinks we're going to have 60 Republicans, and it would take a presidential signature."

With millions of Americans already covered under the law and the second open-enrollment period beginning Nov. 15, it is unclear how forceful a Republican-controlled Congress would be.

If Republicans approach health care modestly and seek changes with bipartisan support, such as a repeal of the law's tax on medical devices, Democrats say they will be put in a difficult spot. If Republican leaders give their conservative voters what they want, it could enable the president's party to stage a comeback in 2016 by creating a clash over insurance coverage that Democrats think they could win.

"When I'm sitting in Washington in January, that means there's something like 10, 11, 12 new Republican senators," said Mr. McFadden, who, if he wins, will have caught a very large Republican wave. "I guarantee you we will believe we have a mandate to reform health care." Correction: October 31, 2014

An earlier version of this article misstated one of the positions of Ed Gillespie, the Republican Senate candidate in Virginia. He is a former lobbyist, not a lobbyist.